Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Monday, January 29, 2018

Candelore v. Tinder (Cal. Ct. App. - Jan. 29, 2018)

I'm not a big believer in discrimination based on immutable characteristics. Shocking, I know.

As a result, I'm a fan of the Unruh Civil Rights Act. Seems to me that you shouldn't make arbitrary or unjustified distinctions based on stereotypes. No charging more (or less) based on race, gender, sexual orientation, etc. Unless there's an actual good reason it. That resonates with me.

Yet I tend to think that principle is increasingly affirmed more in theory than in fact. You see legions of cases that attempt to salvage gender-based discrimination, for example (e.g., "Ladies Nights"), by imposing a variety of substantive and procedural obstacles to enforcement. Or you courts rationalize discrimination on a number of different grounds.

Some of these developments might make sense. But I have a feeling that underlying the morass of them is a belief that stereotypes (or at least "accurate" stereotypes) are okay. Or at least not as bad as traditionally thought.

The case involves Tinder. The Court of Appeal cogently explains the service in the first paragraph of its opinion. Lest anyone have been under a rock for the last decade (or at least not regularly around millennials since then):

"Tinder, Inc. owns and operates the smartphone-based
dating application, Tinder. The original app began, and is still
offered, as a free online dating service. It presents users with
photos of potential dates. The user can swipe right to express
approval, or swipe left to express disapproval. In March 2015,
Tinder released a premium service called “Tinder Plus,” which
allows users to access additional features of the app for a monthly
fee."

Now, admittedly, I've never used the thing. Nor did I know about Tinder Plus. So there's something in that opening paragraph for everyone.

And I especially didn't know about the pricing structure for Tinder Plus. Which is indeed interesting:

"Tinder charges consumers who are age 30
and older $19.99 per month for Tinder Plus, while it charges
consumers under the age of 30 only $9.99 or $14.99 per month for
the Tinder Plus features."

Hmmm. I would have thought that was exactly the sort of thing that the Unruh Act prohibited. So did the plaintiff, who sued.

But the trial court disagreed. "The trial court
sustained Tinder’s demurrer without leave to amend, ruling in
part that Tinder’s age-based pricing practice did not constitute
arbitrary or invidious discrimination because it was reasonably
based on market testing showing “younger users” are “more budget constrained” than older users, “and need a lower price to
pull the trigger.”"

But the Court of Appeal disagrees. Here's the scoop. With a cultural reference at the end.

"But, as discussed below, the Unruh Act provides broad
protection against arbitrary age-based price discrimination. No
matter what Tinder’s market research may have shown about the
younger users’ relative income and willingness to pay for the
service, as a group, as compared to the older cohort, some
individuals will not fit the mold. Some older consumers will be
“more budget constrained” and less willing to pay than some in
the younger group. We conclude the discriminatory pricing
model, as alleged, violates the Unruh Act and the UCL to the
extent it employs an arbitrary, class-based, generalization about
older users’ incomes as a basis for charging them more than
younger users. Because nothing in the complaint suggests there
is a strong public policy that justifies the alleged discriminatory
pricing, the trial court erred in sustaining the demurrer.
Accordingly, we swipe left, and reverse."